This page is a quick reference guide to the 10 Feb 2017 Decision with key exhibits. (Complete plaintiff trial exhibits are here).
See also the court transcript of Judge's ruling from the bench, the March 8th judge's final signed ruling, and the March 8th Petition for Declaratory Ruling for normal OHWM determination on parcel 92 (what the public have been asking for, for two years).
Left: 2015 drawing showing parcel 92 (labeled Fill - it's a historical dock) and parcel 100 (in two parts, labeled
Above OHWM and Below OHWM - green is the "DNR Letter of Concurrence" parcel). The judge ruled that peach/tan (parcel 92) and purple (part of 100) remain in the Public Trust (see below).
Right: 1904 map, not long after the granary (that still exists) was built, showing the Teweles and Brandeis dock as it was configured then, with a large U-shaped warehouse. And, indicating the areas that became parcel 92 (the dock) and parcel 100.
On Friday, 10 February 2017, Door County case 16CV23 was adjudicated. The judged ruled immediately following closing arguments, saying that it was obvious that all, or nearly all, of parcel 92 was artificially filled lakebed [a large historical dock], filled by the riparian and remains in the Public Trust.
The judge also said parcel 92 was subject to an OHWM determination (to clarify where, near Maple Ave, the line is). The Friends of the Sturgeon Bay Public Waterfront are providing the exhibits that supported the judge’s ruling, that all or nearly all of parcel 92 is artificially filled lakebed filled by the riparian owners and remains in the Public Trust, in the event the current riparian owner (the City) requests an OHWM determination from WDNR.
Parcel 92 is quite different from Parcel 100. Parcel 92 was a dock, constructed by the riparian owner. Parcel 100 was the space between two docks, for which the DNR issued a Letter of Concurrence of the approximate OHWM in October 2014.
Parcel 92 does not have any intact field indicators of the Ordinary High Water Mark. Alternate information sources that are routinely used to determine the OHWM were presented at the recent trial. Some that are noteworthy for an OHWM determination may include historic maps / map overlays (Exhibits 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 23, 24, 32), chain of title (Exhibits 5, 7, 13, 14), historic aerial photographs (Exhibits 26, 27, 28), historic newspaper accounts of the riparian owner constructing, filling and extending the dock (Exhibits 29, 30), Phase I and Phase II and other environmental reports (Exhibits 37, 38, 39, 40, 41, 42), and core samples or soil boring reports (Exhibits 43, 44, 45, 46, 47, 48, 49).
When using navigation maps from the US Army Corps of Engineers (USACE) it is noteworthy that the sounding depth datum are set to the “low water datum” which is several feet (typically 3 feet) below the OHWM datum set by the USACE at 581.5 feet for Lake Michigan. For example if an USACE map indicates a two-foot sounding depth this would mean it is actually five feet of water from the lakebed to the OHWM.
Exhibit 19 - Overlay historical shorelines, docks. A collection of some of the Historical Maps clearly shows the development of the dock extending into the water. The City developed an interpretive sign, Exhibit 32 - City's overlay, historical docks, which also shows the construction of the dock that is parcel 92.
The soil cores on both parcels 92 and 100 are clear that the profile is artificially placed fill (of assorted types) of several feet over lacustrine or lakebed sediment. See Exhibit 44 - Soil Cores map, and Exhibit 45 - Artificial Fill Over Lakebed, and Exhibit 47 - Artificial Fill Over Lakebed, as examples showing a picture of what the below-surface artificial fill over lakebed looks like from those soil cores. At the trial, expert witness Huntoon was clear in explaining that the City’s engineering studies showed and described several feet of artificial fill on top of lakebed across both parcels 92 and 100. Transcripts of Ms. Huntoon’s testimony are available.
Noteworthy in the title history, the artificially filled dock that became parcel 92 did not appear in any title records until 1944 after Isidore Brandeis’s death, when the Brandeis family declared that lots 1-4 of Block 8 (previously in the water) were now made land. See Historical shorelines at riparian lots showing lots 1-10 of Block 8 in relationship to the historical platted shoreline. See Exhibit 13 - Historical Title Chain and Exhibit 14 - Historical Title Chain, for history of title.
Parcel 100 did not appear until 2014 when the City quit-claimed it to itself, at the same time as recording the DNR’s Letter of Concurrence as to the approximate ordinary high water mark on parcel 100, in order to create title and parcel.
For parcel 92, the record is clear. Successive riparian owners (of the land bounding the water over which the dock extends) were the ones that constructed, filled under, and extended what we know as the Teweles and Brandeis dock. For this, the title records as well as Exhibit 29 - Newspaper, Dock Fill, explain the history of the dock filling clearly.
For parcel 100, where the riparian owner was the City, this area was a municipal dump and also was filled by the City when Maple Ave and Neenah were extended and connected over the water. Exhibit 30 - Newspaper, Concurrence Parcel Fill, explains this history.
In the 1950s, the City received a ‘stamp’ approval for a bulkhead, that was declared to not be near the shoreline. This is the bulkhead we know today. The public trust regulators of the time were clear that this further fill around the docks to the bulkhead, on both parcels 92 and 100, remained the property of the state and subject to public trust.
In the Judge’s decision immediately following closing arguments on 10 February 2017, he concluded it was obvious that parcel 92 was all, or nearly all, artificially filled lakebed - the historical dock - filled by the riparian owner(s) over time as they constructed and expanded the dock, and must remain in the public trust.
For parcel 100, although we believe the record is clear (from historical maps, newspaper records and from the actual soil cores in the City’s engineering reports) that parcel 100 was also artificially filled over decades by the City as riparian owner and should remain in the public trust, the Judge decided to defer to the DNR’s Letter of Concurrence, which had said that a landward portion of parcel 100 could have been filled by “natural accretion”, through wave action between the Teweles and Brandeis dock and the Bushman dock (now Sawyer Park and Oregon Street bridge).
photo: Ken Simonsen